‘The Fate of Children Caught in Marriage Breakups’ – Stephen Potts

“One of those really big risks of asking children for their views is that it directly draws them into the dispute between their parents.”

“How old does the child have to be before they can choose where they live when their parents separate?”

Family law specialist Stephen Potts from Neumann and Turnour lawyers in Brisbane gave the answer to this question and others when he shared aspects of his work with Vision’s radio listeners recently.

Nothing pleasant about the topic though. That being the destiny of children involved in a marital breakup.

‘Under who’s roof will the children be kept?’

The Family Law Act is in place to help. But it doesn’t make up for the emotional trauma experienced by a child exposed to the hatred and the violence that can unfold in the house they’re trapped in, that’s no longer the home and the sanctuary they need.

There are a million and one issues. However, the focus of this particular discussion with Steve Potts, the legal firm’s managing director, was the matter of child custody and all the side issues that go with that.

Steve said the questions he is asked most frequently regarding child custody is under who’s roof will the children be kept and how much time will the parents have with them.

Steve said it’s usually about the fate of those children who are approaching their teenage years.

‘What is going to be in the best interests of the children?’

“Maybe they are teenagers maybe they’re 9 or 10 years of age and they’re trying to work out how the court will weigh up decisions about their children and how much involvement the children will have in making that decision,” Steve said, saying it comes down to balancing the time the children will spend with each parent.

This dilemma exposes the selfishness of the parents above the emotional scarring being unloaded upon the hearts and minds of their children.

But it should be remembered in most cases this a new experience for the separating couple.

“Most people haven’t been through it so the first thing they want to know is where they stand in relation to the law. But the best question the parents should ask is what is going to be in the best interests of our children,” Steve shared and said another issue effecting the decision-making are the differing backgrounds of the parents.

“Separating Christians tend to go through it in a more gracious way’

“Some are Christians some are non-Christians, some from other religious backgrounds. Whoever comes through the door brings with them their own perspectives,” Steve Potts informed before describing what Christian parents in this situation expect.

“There’s a real wrestling with ‘what are my legal rights’ and ‘how do I resolve or reconcile that with what I know about God, what I’ve read in the Bible, and the right way to act in this particular scenario,” Steve said, saying Christians tend to go through it in a more gracious way than others.

Steve said it’s because they know they’re not ultimately accountable to the law but to God.

“There’s a sense they want to make sure they’re right before Him even if it’s at their own detriment under the Australian legal system.”

‘If their idol is their children they tend to fight about it’

Steve Potts said the Christian parents usually know they could take a more hardline approach but instead consider the wellbeing of the children.

“Parents can make idols of their children in the same way people can make an idol of their job or another religion. But if their idol is their children they tend to fight about it even more,” Steve commented but said that’s less common among Christians.

But what about the children? How old do they need to be to make the decision of the separating parent they choose to live with? Steve said there’s a high risk factor that comes with that question.

“One of those really big risks of asking children for their views is that it directly draws them into the dispute between their parents.”

‘Children’s views can lead to a greater conflict with the parent’

“If they sense that the parents are in conflict and they adopt the position of one of their parents, by default that puts them in conflict with the other parent,” Steve Potts confirmed saying that can cause more trauma.

“What happens when both parents for example, turn up to a parent teacher interview? Or what happens when they come to the school fete, or the child’s performance in the school play?”

“Or the soccer game on a Saturday morning and the parents are both there? If the child is aware of the conflict and has been dragged into it and in the choosing of sides, then that can create all of the issues that can manifest much later in life, “Steve said, saying sometimes it is much easier for the child not to maintain a relationship with the other parent because the conflict for them is far too great.

‘The law courts rely on quite skilled people who deal with those issues’

But for the children who want to get along with both parents, Steve said this just creates more tension for them.

Steve said the law courts rely on quite skilled people who deal with those issues as a way of eliciting that information without necessarily asking a child point blank where they want to live or things like that,” Steve Potts stressed, saying there’s ways in which they can tease those questions out in a child-focused and age appropriate way.

“They can get to the core of what the child’s needs might be without causing the child to feel like they’re choosing sides,” Steve shared.

“Children will have different attachments to their parents and those attachments will change with time.”

‘Under the Family Law Act the children have a right to know’

“So very young children typically want their mum because they’re so dependent upon their mother. But as they get older those attachments move backwards and forwards,” Steve noted, adding that it also depends on whether they’re boys and girls.

“At various times little boys will be more drawn to their mother and then more drawn to their dad then back to their mum. Same for the girls but it might be at different ages.”

Steve Potts clarified that in stable marriages that works quite well and the children feel quite comfortable but not so when the parents separate.

“That creates a whole lot of extra conflict and uncertainty for the child. And under the Family Law Act the children have a right to know and be cared for by their parents’ subject to safety issues.

‘I want to spend more time with mum (or dad)’

“How do you do that? How do you actually make sure the child is comfortable talking about the other parent and wanting to spend a bit of extra time with mum or dad,” Steve said before 20Twenty host Neil Johnson repeated the burning question.

“How old does the child have to be before they can choose where they live when there’s a separation?”

“I’ll give you a lawyer’s answer,” Steve Potts replied.

“It depends. In terms of the way the Court approaches it. I said before that, rather than people running off to court and asking the Court to do it, they really should say ‘what’s in our children’s best interest,” Steve qualified saying that’s the first question the Court asks as well.

Steve said there are some primary considerations.

‘It might depend on their age or it might depend on their level of maturity’

“The benefit of children having a meaningful relationship with both of their parents and the need to protect them from harm. And then there are a whole range of additional considerations,” Steve alluded to.

“One of those additional considerations are the view the children might express and the weight that should be attached to those views.”

Steve said that might depend on their age or it might depend on their level of maturity before giving an example of a couple in his office.

“If you have a couple just separated with a little boy who’s 9 and he’s asked who he wants to live with, his entire frame of reference is only having lived with both parents who are together.”

‘It’s not so much the age of the child that carries the day’

“He doesn’t understand what living in two separate households means. He might have some friends at school going through it but his experience has never been two separate households,” Steve explained.

“But if you have a couple who separated when their child was 2 and who is now 9, that child has a much better appreciation of what it means to live in two separate households because most of his memory is that scenario.”

“It’s not so much his age carries the day but his level of maturity or his understanding of the two separate households is much more informed,” Steve noted saying as children get older they tend to be able to distinguish between their own views and the views of their parents.

‘The Court can make an order until they’re 18 where they’re to live’

“There’s no set age limit in the Family Law Act that says this is when children get to choose their views technically. The court can make an order until they’re 18.”

Steve Potts concluded by saying when children hit their teenage years they start doing lots of things on weekends, sports commitments, part-time jobs.

“All of that has to feed into the mix,” Steve said before giving a statistic or two on the broken marriage lifespan.

“On average marriage breakups occur around the 7 to 8 year mark in Australia. This means typically the children are fairly young. The resources for the courts and the lawyers are mostly devoted to those with younger children. This is where the courts, the lawyers and the psychologists’ times are spent.”

Stephen Potts is an Accredited Specialist in Family Law and the Managing Director of Neumann & Turnour Lawyers.

The majority of Stephen’s practice focuses on family law disputes and resolution. He has extensive experience with complex property settlements involving private and publicly listed companies, trusts and partnerships. He works with other professionals including accountants, financial planners and counsellors to assist you through all aspects of separation and divorce.

Stephen is able to advise and represent you in court proceedings or through non-court processes, such as mediation or the preparation of a Financial Agreement.